State v. Bolin ( 2017 )

NOTICE: NOT FOR OFFICIAL PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.
IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE
STATE OF ARIZONA, Respondent,
v.
SHAUN KORY BOLIN, Petitioner.
No. 1 CA-CR 15-0675 PRPC
FILED 5-2-2017
Petition for Review from the Superior Court in Maricopa County
No. CR2012-007268-001
The Honorable Jo Lynn Gentry, Judge
REVIEW GRANTED; RELIEF DENIED
COUNSEL
Maricopa County Attorney’s Office, Phoenix
By Amanda M. Parker
Counsel for Respondent
Shaun Kory Bolin, San Luis
Petitioner
STATE v. BOLIN
Decision of the Court
MEMORANDUM DECISION
Judge Paul J. McMurdie delivered the decision of the Court, in which
Presiding Judge Kent E. Cattani and Judge Jon W. Thompson joined.
M c M U R D I E, Judge:
¶1 Shaun Kory Bolin petitions this court for review from the
dismissal of his petition for post-conviction relief (“PCR”) filed pursuant to
Arizona Rule of Criminal Procedure 32.1 For the following reasons, we
grant review but deny relief.
FACTS AND PROCEDURAL BACKGROUND
¶2 Bolin pled guilty to arson of an occupied structure, a class 2
dangerous felony. In doing so, Bolin agreed to pay restitution to the victims
in an amount not to exceed $2,500,000, and stipulated to a prison sentence
of between ten and 15 years. The superior court imposed an aggravated
15-year term.
¶3 Bolin timely filed a notice of post-conviction relief, after
which the court conducted a restitution hearing and ordered Bolin to pay
$110,320.87 to the victims’ insurance carrier. Bolin’s assigned PCR counsel
reviewed the record and information provided by Bolin, but was unable to
find any claims for relief. Bolin timely filed an in persona propria Rule 32
petition, raising claims of ineffective assistance of counsel based on (1) trial
counsel’s failure to investigate and present mitigating evidence at
sentencing regarding his mental health, (2) trial counsel’s “erroneous“
advice regarding the applicable sentencing statute and her purported
promise to Bolin before he accepted the plea agreement that he would be
sentenced to the presumptive term of 10.5 years, and (3) trial, restitution,
and PCR counsel’s failure to “test the amount of restitution.” Bolin also
argued the imposed prison term exceeded the aggravated maximum
sentence permitted by law. The superior court summarily denied the
petition and Bolin’s subsequent Motion for Rehearing. This timely petition
for review followed.
1 Absent material revision after the date of an alleged offense, we cite
a statute’s or rule’s current version.
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STATE v. BOLIN
Decision of the Court
DISCUSSION
¶4 “We will not disturb a trial court’s ruling on a petition for
post-conviction relief absent a clear abuse of discretion.” State v. Swoopes,
216 Ariz. 390, 393, ¶ 4 (App. 2007). We are obliged to uphold the trial court
if the result is legally correct for any reason. State v. Perez, 141 Ariz. 459, 464
(1984); State v. Cantu, 116 Ariz. 356, 358 (App. 1977).
¶5 Regarding his claims of ineffective assistance of trial counsel,
Bolin argues the superior court erred by finding he failed to provide
sufficient information showing how the purported mitigation would have
affected the sentence, and he repeats his argument that trial counsel
promised he would receive a presumptive sentence. Regarding trial
counsel’s purported failure to adequately research the issue of restitution,
Bolin argues the superior court erred by finding he failed to provide
information that showed he was ordered to pay more than the fair market
value of the property. In support, Bolin included a computer printout
apparently indicating the subject property was sold in August 2012, almost
seven months after the date of the offense, for $110,000.
¶6 To state a colorable claim of ineffective assistance of counsel,
a defendant must show that counsel's performance fell below objectively
reasonable standards and that the deficient performance prejudiced the
defendant. Strickland v. Washington, 466 U.S. 668, 669–70 (1984); State v.
Nash, 143 Ariz. 392, 397 (1985). The burden is on the petitioner seeking
post-conviction relief to show ineffective assistance of counsel, and the
showing must be that of a provable reality, not mere speculation. State v.
Rosario, 195 Ariz. 264, 268, ¶ 23 (App. 1999). The superior court need not
conduct an evidentiary hearing based on mere generalizations and
unsubstantiated claims of ineffective assistance of counsel. State v. Borbon,
146 Ariz. 392, 399 (1985).
¶7 The superior court did not err by summarily rejecting Bolin’s
claims of ineffective assistance of trial counsel. Bolin provided no evidence
with his petition, such as affidavits or medical records, to support his
assertions of “mental disabilities[,] childhood problems[,] [and] marriage
problems;” indeed, Bolin did not even specify what those disabilities and
problems were. See Ariz. R. Crim. P. 32.5 (requiring petitioner to attach
“affidavits, records, or other evidence currently available to the defendant
supporting the allegations”). Bolin also failed to support a conclusion that
trial counsel’s performance fell below objectively reasonable standards. See
State v. Herrera, 183 Ariz. 642, 647 (App. 1995) (“[To raise a colorable claim
of ineffective assistance of appellate counsel], the petitioner must offer
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STATE v. BOLIN
Decision of the Court
evidence of a reasonable probability that but for counsel’s unprofessional
errors, the outcome of the appeal would have been different.”). As for the
promises trial counsel allegedly made with respect to sentencing, Bolin
expressly informed the court at the change-of-plea hearing that no promises
were made to induce him to plead guilty, or otherwise made outside those
in the plea agreement.
¶8 The court also properly dismissed Bolin’s claim of ineffective
assistance of counsel related to restitution and PCR counsel. Despite his
assertion that the restitution award was greater than the fair market value
of the victim’s home, Bolin made no argument—and provided no
supporting authority—regarding his claim that the plea agreement
contemplated limiting the restitution amount to fair market value of the
home. Assuming that it did, the $110,320.87 restitution award imposed is
certainly within the fair market value of the $110,000 sale price of the
computer printout submitted by Bolin.
¶9 Regarding the lawfulness of his sentence, Bolin contends the
court erred by concluding Arizona Revised Statutes (“A.R.S.”) section
13-704(A) applies to his arson conviction. According to Bolin, the plea
agreement refers to § 13-702, not § 13-704(A), therefore requiring sentencing
under the former. Bolin, however, pled guilty to arson as a dangerous
felony offense. Thus, as a first-time felony offender, Bolin was subject to the
sentencing range in § 13-704(A), not § 13-702, which applies to a first felony
conviction that is a non-dangerous offense. Compare A.R.S. § 13-702(A), with
A.R.S. § 13-704(A). Accordingly, the presumptive term of imprisonment for
Bolin’s arson conviction was 10.5 years, and the maximum was 21 years.
A.R.S. § 13-704(A). Although Bolin is correct regarding the inaccurate
statutory reference in the plea agreement, the court and the prosecutor
correctly advised Bolin before he accepted the plea of the correct applicable
range in § 13-704(A), and they reminded Bolin of his stipulation to serve a
ten to 15-year prison term. Bolin acknowledged the court’s explanation
without asserting he was subject to a lesser sentencing range as a
non-dangerous first offender. The imposed 15-year term was well below
the maximum sentence of 21 years provided in § 13-704(A).
¶10 Finally, relating to the discrepancy between §§ 13-702
and -704(A), Bolin, as he did in the superior court, argues trial counsel’s
assistance was ineffective because her “failure to research the applicable
statute . . . and counsel’s misadvice [sic] concerning how much time the
defendant could receive . . . constitutes ineffective assistance of counsel.”
The record belies Bolin’s assertion that counsel provided him with mistaken
advice. As noted, the court and the prosecutor repeatedly informed Bolin
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STATE v. BOLIN
Decision of the Court
of the applicable sentence under § 13-704(A), and neither Bolin nor his
counsel challenged these advisements. Indeed, before he pled guilty, Bolin
personally argued for an amended plea agreement containing a lesser
stipulated prison term because “sit[ting] around prison for ten or 15 years”
would hinder restitution payments to the victims.
CONCLUSION
¶11 The superior court did not abuse its discretion by denying
Bolin’s petition for post-conviction relief. Accordingly, we grant review but
deny relief.
AMY M. WOOD • Clerk of the Court
FILED: AA
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